Effect of judg ment in eject ment. Damages. the old form. The reason is, that the entry when made relates back to the origin of the title, and all who occupied in the meantime, by whatever title they came in, are answerable to him for their occupation (p).. But where the party in possession is not a trespasser at all, until his title is made void by entry, as where he holds against the reversioner or remainderman by virtue of a fine levied by tenant for life, mesne profits can only be recovered from the date of such entry (q). Even in equity it seems there is no remedy (r). By 15 & 16 Vict., c. 76, s. 207, the effect of a judgment in ejectment under the new form of proceeding given by that act, shall be the same as that of a judgment in the action of ejectment previously in use. Such a judgment then, when pleaded (s), will be conclusive as to the right to possession against the defendant in ejectment, and all persons claiming under him up to the day on which title is laid. For any damages claimed previously to that day, strict proof of title will be necessary (t). Damages in this action are not confined to the mere rent of the premises, but the plaintiff may recover for the trouble and expense he has been put to. And Gould, J., said that he had known four times the value of the mesne profits given by a jury in this action (u). So any consequential damage may be recovered; as for instance, the loss which the plaintiff has suffered by the defendant's shutting up an inn, which was the subject of the ejectment, and destroying the custom. Such damage, however, must be specially laid (x). Where no evidence is given as to the length of time during which the defendant was in possession, no more than nominal damages can be given, and the case is the same even though a date be laid in the declaration, not under a viz., and judg (p) Holcomb v. Rawlyns, ubi sup.; per Coltman, J., 5 M. & Gr. 764; 774; Barnett v. Earl of Guildford, 11 Ex. 19; 24 L. J. Ex. 281, 284. (q) Lee Compere v. Hicks, 7 T. R. 727; Hughes v. Thomas, 13 East, 474. (r) Reynolds v. Jones, 2 Sim. & Stu. 206; Dormer v. Fortescue, 3 Atk. 124, contra. (s) Matthew v. Osborne, 13 C. B. 919; 22 L. J. C. P. 241; [Wilkinson (u) Goodtitle v. Tombs, 3 Wils. 121; 3 T. R. 547, S. P. ment go by default; for the date is not material or traversable, and therefore not admitted (y). One common ground of damage used to be the costs of eject- Costs of previous ment, which under the form of fiction in use till lately, could ejectment. not be recovered in that action when the landlord or tenant did not appear, or having appeared, did not confess lease, entry, and ouster at the trial (2). In respect to these the rule laid down was, that where the judgment was taken in such a form as admitted of the costs being taxed, those costs alone were recoverable, and no extra costs, though bonâ fide incurred (a). The apparent exceptions to this rule were in cases where costs could not be taxed; for instance, where judgment obtained by the defendant had been reversed in error, where a court of error could not award costs (b); or where judgment had gone by default, in which case it was not the practice for the officers to tax against the casual ejector (c). In the latter case there seems now to be no objection to signing judgment and taxing costs against the real defendant, as his name appears on the record (d). The former case stands still on its original footing. The old rule still prevails as to costs upon error, viz., that when judgment is reversed, the party ultimately prevailing pays his own costs in error, though he receives his costs in the original action. This doctrine is unaffected either by 15 & 16 Vict. c. 76, s. 148, (y) Ive v. Scott, 9 Dowl. 993. [The effect of judgment by default in ejectment, as evidence of the defendant's possession, in an action for mesne profits, was discussed recently in the Court of Exchequer. Kelly, C. B., was of opinion that taken alone it was no evidence of the defendant's possession at any time. Channell, B., and Cleasby, B., considered it to be prima facie evidence that the defendant was in possession at the date of the writ of ejectment, but not evidence of his possession for the period during which the plaintiff claimed title in the writ; Pearse v. Coaker, L. R. 4 Ex. 92; 38 L. J. Ex. 82.] (z) Tidd. Prac. 9th ed., 1243. [An allegation in the declaration that the plaintiffs had incurred great expense in recovering possession, has been held to support a claim for the costs of previous ejectment; Pearse v. Coaker, supra.] (a) Doe v. Davis, 1 Esp. 358; Symonds v. Page, 1 C. & J. 29; Doe v. Filliter, 13 M. & W. 47; Brooke v. Bridges, 7 Moore 471; Doe v. Hare, 2 Dowl. 245. (b) Nowell v. Roake, 7 B. & C. 404. (c) Doe v. Huddart, 2 C. M. & R. 316. (d) See 15 & 16 Vict. c. 76, ss. 177, 206. [The received opinion is, however, that this Act does not entitle the plaintiff to costs upon a judgment by default, and that they must still be recovered by action for mesne profits; 2 Ch. Arch. 1037, 12th ed.; Cole on Ejectment, 131; Day's C. L. P. Act, 147, 3rd ed.] Payments in reduction of damages. Improvements. which provides that the proceeding in error shall be a step in the cause, or by the 25 Pl. rule of Hilary Term, 1853, which says that the costs of proceedings in error are to be costs in the cause. The meaning of that rule is, that where the party succeeding is entitled to his costs in error, they are to be taxed as costs in the cause (e). There are express provisions in the Common Law Procedure Act, 1852, that where the defendant confesses the action (ƒ), or judgment is given against him (g), execution may issue for costs as well as for the recovery of possession. In none of these cases then is it likely that costs will for the future be sued for in an action for mesne profits. If the defendant has made any payments while in possession, for which plaintiff would be liable, as ground rent [or rates and taxes], he is entitled to have it taken in reduction of damages (h). In America the courts go much further. There a bona fide occupant of land is allowed to mitigate damages in an action by the rightful owner, by setting off the value of his permanent improvements, made in good faith, to the extent of the rent and profits claimed (i). This doctrine, however, has never been asserted in England as far as I am aware. In one case where a party had permitted buildings to be erected upon his property, by a person who acted under a mistaken impression that the land was his own, a Court of Equity restrained an action for mesne profits by injunction, in order to compel the plaintiff to allow the value of the buildings as a set-off (k). This in itself shows that the defendant would have had no claim for compensation at law, and even in equity the argument in his favour rested solely on the fact that the plaintiff had stood by and countenanced his acts, which amounted to a fraud upon him. Nor does the doctrine seem well founded, as a mere matter of natural justice. The improvements may be very valuable, but they may be quite unsuited to the use which (e) Fisher v. Bridges, 4 E. & B. 666; 24 L. J. Q. B. 165; [Marshall v. Jackson, 4 E. & B. 669, n. ; 24 L. J. Q. B. 166, n.; Windle v. Barker, 25 L. J. Q. B. 349.] (ƒ) S. 203. (g) Ss. 185, 197. (h) Doe v. Hare, 2 C. & M. 145; [Barber v. Brown, 1 C. B. N. S. at p. 150; 26 L. J. C. P. at p. 49.] (i) Sedg. Dam. 125; [Morrison v. Robinson, 31 Penn. 456.] (k) Cawdor (Earl of) v. Lewis, 1 Y. & C. 427. the plaintiff intends to make of his land. Even if they are such as he would have wished to make, they may also be such as he could not have afforded to make. To compel him to pay for them, or to allow for them in damages, which is all the same, is quite as unjust as it would be to lay out money in any other investment for a man, and then compel him to adopt it, nolens volens. It is no answer to this action that the plaintiff had entered a remittitur damna upon the record in the action of ejectment (1). Where ejectment is brought by landlord against tenant, and due notice of trial has been served on the tenant or his attorney, the plaintiff may always go into evidence of mesne profits, and obtain a verdict for them down to the time of verdict given; even though the record has contained no notice that the demand would be made (m). But such recovery shall be no bar to an action for mesne profits from the time of verdict to delivery of possession (n). Formerly executors could not sue or be sued in this action; Executors. but now it seems they may by 3 & 4 W. IV. c. 42, s. 2, provided the action be brought by the executors or administrators within a year after death, and for injuries committed within six calendar months before death; and similarly as to actions against executors or administrators, except that the action must be commenced within six months after they have taken upon themselves the administration of the estate. 3. In actions for injuries to easements, such as rights of Easements. way, watercourses, light, common, and so forth, no rule can be laid down as to the measure of damages. They will vary in each case, according to the species and amount of injury caused. Frequently, however, such actions are brought where no actual injury has been suffered, to try a right; and the question is, whether the plaintiff is entitled to nominal damages. In such cases the rule may be laid down, that where an When it is necesactual infringement of right has taken place an action will lie, sary to prove and the plaintiff will be entitled to a verdict with nominal (1) Harper v. Eyles, 3 Dougl. 399. (m) Smith v. Tett, 9 Exch. 307; 23 L. J. Ex. 93. damages, though no real loss has been sustained. Hence in actions by commoners against strangers for interfering with their rights of common (o); or by the owners of lands and houses, for violation of their rights of ways, watercourses, light and air (p), there is no necessity to show any actual or substantial damage resulting from the act complained of. Wherever a right has been violated, the law will presume damage, and the mere fact that such acts, if submitted to, would lay the foundation of a fresh right in the wrong-doer, adverse to the original proprietor, is itself support for an action (q). A strong instance of this doctrine arose in a very recent case. By deed between plaintiff and defendant, owners of adjoining closes, it was agreed that during the first ten days of every month the defendant should have the exclusive use, for purposes of irrigation, of the waters of a stream which flowed through his lands to the plaintiff's. That at all other times the water should be under the plaintiff's control, and that it should flow upon his land through the defendant's in a channel specifically described. Defendant altered the stream in its course through his own land, by cutting a new channel. The stream however entered the plaintiff's land at exactly the same point as before, and in the same quantity. No damage of any sort arose. It was held, however, that under the terms of the deed the plaintiff had a right to have the stream flowing in the specified channel, and was entitled to nominal. damages (r). Such legal damage, however, will only be presumed where there has been a clear violation of a right. The facts from which it will be presumed differ greatly according to the subject-matter of the right, and the nature of the interests of the parties in it. For instance, commonage is a matter of private and exclusive right. Any assertion of the same right (0) 1 W. Saund. 346, a; [1 Wms. Notes to Saund. 626.] Wells v. Watling, 2 Bl. 1233; Hobson v. Todd, 4 T. R. 71; Pindar v. Wadsworth, 2 East, 154. (p) Embrey v. Owen, 6 Exch. 353; Bower v. Hill, 1 Bingh. N. C. 549; Wood v. Waud, 3 Exch. 748; Dickinson v. G. Junc. Canal Co., 7 Exch. 282; Rochdale Canal Co. v. King, 14 Q. B. 122; Rochdale Canal Co. v. Radcliffe, 18 Q. B. 287. (q) 1 B. & Ad. 426, per Taunton, J.; [Harrop v. Hirst, L. R. 4 Ex. 43; 38 L. J. Ex. 1.] (r) Northam v. Hurley, 1 E. & B. 665. |